Williams v. Knight, 8 Div. 731

Decision Date04 June 1936
Docket Number8 Div. 731
Citation169 So. 871,233 Ala. 42
PartiesWILLIAMS et al. v. KNIGHT.
CourtAlabama Supreme Court

Rehearing Granted Oct. 8, 1936

Appeal from Circuit Court, Morgan County; W.W. Callahan, Judge.

Bill by Jennie W. Knight against the Tennessee Valley Bank, J.H Williams, as Superintendent of Banks, liquidating said bank and John W. Knight, to cancel a mortgage; and cross-bill by respondent Superintendent of Banks against complainant and John W. Knight seeking foreclosure of said mortgage. From a decree canceling the mortgage as to real estate and enforcing it as to personal property, respondents Tennessee Valley Bank and J.H. Williams, Superintendent of Banks, appeal.

Affirmed on rehearing.

Taylor Richardson & Sparkman, of Huntsville, for appellants.

Julian Harris and Norman W. Harris, both of Decatur, for appellee.

THOMAS, Justice.

This case was dismissed on first appeal for failure to perfect the appeal against necessary parties. Williams, Superintendent of Banks, et al. v. Knight (Ala.Sup.) 167 So. 284.

The cause was submitted on motion and on merits.

The effect of our statute and decisions is, that an appeal taken more than six months after a final decree deprives this court of jurisdiction to hear and determine the questions presented on the trial. A belated appeal will be disposed of here by its dismissal. Section 6127, Code; Boshell v. Phillips, 207 Ala. 628, 93 So. 576. It is further declared that the refusal to grant an application for rehearing, in equity, is within the discretion of the court and not appealable. Johnson v. Johnson, 215 Ala. 434, 111 So. 7; Alexander v. Letson (Ala.Sup.) 167 So. 265; Hamilton et al. v. James, 231 Ala. 668, 166 So. 425; Van Schaick, Superintendent of Insurance of New York, v. Goodwyn et al., 230 Ala. 687, 163 So. 327.

It results from the foregoing decisions that an application for rehearing in equity did not extend the time within which an appeal may be taken. Carlisle et al. v. Carmichael et al., 222 Ala. 182, 131 So. 445; section 6127, Code. It is stated in Chancery Rule 81 that on declining such application "no order must be made on said petition." Vol. 4, Code 1923, p. 932, rule 81; Johnson v. Johnson, supra; Zaner et al. v. Thrower et al., 203 Ala. 650, 84 So. 820.

The final decree was rendered on August 29, 1935; appeal and supersedeas bond is of date of March 30, 1936, "filed and approved" the same day. The application for rehearing (denied on October 5, 1935) did not have the effect of extending the statute beyond the six months' period prescribed for taking an appeal in such case. Thus a question of jurisdiction is presented. The motion to dismiss the appeal is granted.

Appeal dismissed.

ANDERSON, C.J., and BROWN and KNIGHT, JJ., concur.

On Rehearing.

THOMAS Justice.

The question of final judgments from which appeals may be taken to this court needs no further definition than that found in the decisions under the several statutes providing for appeals. De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502, 505; Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716. Two final decrees may be entered in the same cause in equity which will support an appeal--one settling the equities between the parties, and one confirming the register's report in so far as the first decree is not final but interlocutory--and it is well settled that "matters pertaining to the equities settled by the decree cannot be reviewed on appeal from the final decree entered after the bar has been perfected, confirming the report of the register." O'Rear v. O'Rear, supra; Cochran et al. v. Miller et al., 74 Ala. 50.

With the understanding of what is a final decree or judgment that will support an appeal, in this case, the important question is the time within which an appeal is required to be taken to review the action of the court under the statute. Section 6127, Code.

Appellants' counsel in argument on motion for rehearing thus state the facts and question to be decided: "The appeal in this case is from the decree of the Circuit Court of Morgan County, rendered on the 29th day of August, 1935, by appeal and supersedeas bond filed March 30, 1936. Within thirty days after the decree of August 29, 1935, formal written motion for rehearing of such decree was filed with the Register, presented to the Court, and by orders duly entered upon the Minutes of the Court continued for hearing to October 5, 1935, when a formal order and decree of the court was entered denying the application; appellants contending that by virtue of such application for rehearing the time for appeal from the decree of August 29, 1935, had not commenced to run until October 5, 1935."

In the instant case, the question is the attempt to take an appeal more than six months after the final decree on the merits and within six months after the overruling of the motion for rehearing; the motion being made under rule 81, Chancery Practice (Code 1923, vol. 4, p. 932).

Most of the decisions which we have rendered were in cases at law involving the effect of the statute providing for new trials at law and review of actions of trial courts thereunder.

We have sought to find a decision where the question of the running of the statute affected a judgment or decree in equity, and not that in law or kindred judgments. Exchange Distributing Co. v. Oslin, 229 Ala. 547, 158 So. 743; Tatum v. Williams, 231 Ala. 269, 164 So. 387.

It will be noted that in Tucker et al. v. Houston et al., 216 Ala. 43, 46, 112 So. 360, 362, Mr. Justice Sayre observed: "In Lewis v. Martin, 210 Ala. 401, 98 So. 635, the trial of the issue of devisavit vel non before a jury is likened in every respect to the trial of a civil case at law. The court in that case went so far as to hold that, pending a motion for a 'new trial or rehearing,' the decree does not become final and will not support an appeal, and that rule 81 of chancery practice has no application to a case of this character. In other words, it was ruled that, notwithstanding the bill to contest a will must be filed on the equity side of the court, it is to all intents and purposes an action at law. This seems to the writer to be at variance with the decisions in Ex parte Colvert, 188 Ala. 650, 65 So. 964, and Kilgore v. T.C., I & R. Co., 191 Ala. 189, 67 So. 1002; but the court here and now prefers to stand by the precedent afforded by Lewis v. Martin, supra. Accordingly, the motions to strike the bill of exceptions and to dismiss the appeal are both overruled."

The matter was next considered in Vaughn v. Vaughn, 220 Ala. 132, 133, 124 So. 293, where it was observed of the analogous statutes as follows: "Where will contest was transferred from probate court to county court under Loc.Acts 1927, p. 97, § 18, appeal filed more than 30 days from date order overruling motion for new trial was entered held barred in view of Code 1923, § 6116, providing for appeals from judgment of circuit court on contest of wills to be taken within 30 days after judgment when case had been removed to such court by appeal from probate court under section 6115, and in view of section 10636, which provides for appeal to Supreme Court from judgment of circuit court on will contest, as Loc.Acts 1927, p. 99, § 27, provides that appeals may be taken from orders and judgments of county court to Supreme Court and Court of Appeals in the same manner and within same time as appeals are taken from orders and judgments of circuit courts, since section 6127, providing for appeals within six months, is not applicable to cases in which definite time is prescribed."

The case of Birmingham News Co. v. Fitzgerald, 222 Ala. 386, 133 So. 31, was at law; held, after quoting from Tucker et al. v. Houston et al., 216 Ala. 43, 112 So. 360, that presentation of the bill of exceptions within 90 days after action on a motion for a new trial was sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as on the motion for a new trial.

Davis v. Griffin, Sheriff, et al., 227 Ala. 390, 391, 150 So. 326, was an action for failure to make money on an execution against the sheriff and his surety. This court set out the following with reference to the filing and disposition of the motion for a new trial:

" 'Sept. 15th, 1932. The above motion was presented to me and passed to September 19, 1932, for the appropriate order.
" 'E.P. Gay, Trial Judge.'
" 'Sept. 19, 1932. Motion overruled and plaintiff excepts.
" 'E.P. Gay, Judge.' "

Then observed: "This order, appearing in the bill of exceptions, was, and is, sufficient to prevent the running of the statute until September 19, 1932, and the time within which the bill of exceptions should be presented dated from September 19, 1932. Code, § 6433; Tucker et al. v. Houston et al., 216 Ala. 43, 112 So. 360."

In Roberts v. Bellew, 229 Ala. 333, 157 So. 216, 217, an action for assault and battery, it was said: "The Code of 1923, § 6433, as revised by the legislative committee, has made a change in that respect, so the presentation of a bill of exceptions within ninety days after an order refusing a motion for a new trial preserves for review the rulings on the main trial. Mitchell v. Birmingham News Co., 223 Ala. 568, 137 So. 422; Birmingham News Co. v. Fitzgerald, 222 Ala. 386, 133 So. 31; Lester v. Gay, 217 Ala. 585, 117 So. 211, 59 A.L.R. 1561; Tucker et al. v. Houston et al., 216 Ala. 43, 112 So. 360; Arnold & Co. v. Jordan, 215 Ala. 693, 112 So. 305." The cases cited are all actions at law, with the exception of Tucker et al. v. Houston, et al., which was for contest of a will in chancery where there was a trial by jury under the statute.

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